In United States v. Rodriguez, No. 10-2724-cr (2d Cir. August 25, 2011), a defendant, while detained at the MDC in New York, called his sister and asked her to tell their brother to contact defendant’s attorney so that they could discuss whether he should “cop out” before being indicted. He indicated that the sooner he spoke with his attorney the better, and that they should tell the lawyer to tell the prosecutor that he wanted to plead guilty to the “five-to-40″ drug charge in the complaint.
The district court found that the call was not covered by the attorney-client privilege because Rodriguez knew that the BOP was recording it. It allowed the government to play the recording at Rodriguez’ trial, and the appeals court affirmed.
“[O]n the basis of the undisputed fact that Rodriguez was aware that his conversation was being recorded by the Bureau of Prisons, Rodriguez’s disclosure to his sister of his desire to engage in plea discussions with his attorney was not made in confidence and thus constituted a waiver of the privilege.” Rodriguez did not claim that he had no way to reach out to his attorney directly, “and under BOP regulations, that call would not have been monitored. BOP regulations expressly allow inmates to communicate with their attorneys via telephone and mail, without monitoring. See 28 C.F.R. §540.102 (“Staff may not monitor an inmate’s properly placed call to an attorney.”). (emphasis supplied)
The court, however, points to case law that, at first blush, does not seem to support their finding that “BOP regulations expressly allow inmates to communicate with their attorneys via telephone and mail, without monitoring.” It cites United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003), for the proposition that “[t]he presence of the prison recording device destroyed the attorney-client privilege,” reasoning that ‘[b]ecause the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private,’ that ‘[t]he presence of the recording device was the functional equivalent of the presence of a third party.’ In United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998), a Seventh Circuit case, the court ruled that the marital communications privilege does not survive where the communication took place during a recorded call from prison. Thus a “properly placed” call free from monitoring must mean one that is placed as a result of a specific request by the prisoner to his counselor that he be permitted to call his lawyer on a secure phone. Moral of the story: Do not say anything to anyone—not even to your attorney — that you do not want the government to be able to use against you.
David Zapp (with special thanks to the Federal defenders of New York blog)